Non-solicitation Agreements in Florida

Employers often require employees to sign noncompete agreements as a term of employment.

Such an agreement is a separate document from an employment agreement and serves to protect the employer from certain acts by an employee who is no longer employed with the company.

One of the most common provisions contained in noncompete agreements is the non-solicitation clause. These may be contained within a larger contract itself or maybe a stand-alone document. 

What’s a Non-solicitation agreement?

Non-solicitation agreements are forms of employment contracts between employers and employees to control the employee’s ability to solicit customers or clients of the employer for a certain period of time after she or he no longer works for the employer.

Typically, non-solicitation agreements are part of larger contracts that may also include terms regarding non-compete, confidentiality or non-disclosure agreements. The primary objective of a non-solicitation agreement serves to protect employers’ confidential information or trade secrets.

Non-solicitation agreements can be very valuable to employers and business owners as business owners generally invest significant time, money and other resources into creating and building relationships with their customers. As such, it is reasonable for an employer to attempt to prevent employees from gaining access to a company’s customer list in order to

However, since non-solicitation agreements are essentially restraints on trade, they are easily challenged in Florida if they can be seen as overly onerous or restrictive. For example, a non-solicitation agreement is not enforceable if it bars a former employee from accepting work from the employer’s client who has requested the former employee’s services. (JKR, Inc. v. Triple Check Tax Serv., Inc., 736 So. 2d 43 (Fla. 1st DCA 1999)).

An employer or business owner utilizing non-solicitation agreements with their employees is best served by obtaining the assistance of an experienced business lawyer who can ensure that the agreement is properly drafted so that it remains enforceable.

Determining the enforceability of an agreement?

A simple way to determine the enforceability of such agreements is to satisfy a 3-prong test. Specifically, in Florida, an employer must ensure that the non-solicitation agreement conforms to Florida Statute Section 542.335 by meeting the following three criteria:

• First, the employer wishing to enforce such an agreement must have a legitimate business interest in enforcing the non-solicitation agreement, such as protecting client lists or guarding trade secrets and confidential information.
• Second, the non-solicitation agreement must be reasonable in scope and duration. Scope refers to the geographic area to which the prohibition applies, while duration refers to the amount of time the past employee is prohibited from soliciting clients of the employer (typically 2 years). Essentially, the agreement cannot prevent past employees from reasonably earning a living.
• Third, the agreement must be clear and free of ambiguous language.

When applying this test, one must take into consideration the specific facts and circumstances of the particular business and its industry. Therefore, it is important to ensure that such agreements are narrowly drafted and custom-tailored to the specific needs of the business involved as overly broad or ambiguous agreements will likely be challenged and then nullified by a Florida court.

Utilizing non-solicitation agreements may prove invaluable to small business owners. However, to be effective and provide the desired protection, they must ensure that they are properly drafted and cannot be deemed as too restrictive. The best way to ensure their non-solicitation agreement is effective and accomplishes their goals would be to retain a qualified attorney to assist with the process.

Conclusion

While nonsolicitation agreements are used commonly, their enforceability can be challenged if the agreement is not developed according to the specifics of the law in the state of Florida.

When in question, be sure to contact an experienced South Florida attorney for professional guidance.